Law 101 terms, Civil Procedure - Feinman

Counterclaim

A claim for relief filed against an opposing party after the original claim is filed. Most commonly, a claim by the defendant against the plaintiff.

Cross-claim

A crossclaim is a claim by a plaintiff against another plaintiff or a defendant against another defendant. One way to think of a crossclaim is any claim by one party against another party on the same side of the "v." in the caption.

What is a default judgement?

A default judgment is a ruling granted by a court or judge. Default judgments arise in circumstances whereby one party to a suit has failed to perform a court-ordered action, and subsequently that failure has not only prevented the issue from being presented before the court but also results in the court settling the legal dispute in favor of the compliant party.

Conflicts of law

A difference between the laws of two or more jurisdictions with some connection to a case, such that the outcome depends on which jurisdiction's law will be used to resolve each issue in dispute. The conflicting legal rules may come from U.S. federal law, the laws of U.S. states, or the laws of other countries. Courts faced with a choice of law issue generally have two choices: A court can apply the law of the forum (lex fori)-- which is usually the result when the question of what law to apply is procedural, or the court can apply the law of the site of the transaction, or occurrence that gave rise to the litigation in the first place (lex loci)-- this is usually the controlling law selected when the matter is substantive. Federal courts play by different rules than state courts because federal jurisdiction is limited to what has been enumerated in the Constitution. The rules that federal courts must obey regarding which laws to apply are extremely complex.

What is a summons?

A form prepared by the plaintiff and issued by a court that informs the defendant that he or she has been sued. The summons requires that the defendant file a response with the court -- or in many small claims courts, simply appear in person on an appointed day -- within a given time period or risk losing the case under the terms of a default judgment.

Motion to dismiss (demurrer)

A pleading in which a defendant asserts that the plaintiff's claim fails to state a cause of action (that is, has no basis in law) or that there are other grounds on which a suit should be dismissed... - Lack of personal jurisdiction - Lack of subject-matter jurisdiction - Improper venue - Insufficient process - Insufficient service of process - Plaintiff's failure to state a claim on which relief can be granted, and - Failure to join an indispensable party.

Impleader

A procedural device through which third parties can be brought into litigation. Typically, the device is used by defendants who bring in another party and try to show that this "third party defendant" is liable instead of the original defendant.

Affirmative defense:

A response to a plaintiff's claim that does not deny the plaintiff's facts but attacks the plaintiff's legal right to bring an action. An affirmative defense is a defense asserted by the defendant that essentially says, "even if all of the facts in the complaint are correct, I'm still not liable for a different reason." Examples of affirmative defenses are res judicata, collateral estoppel, laches and statutes of limitation.

Collateral Estoppel (Issue Preclusion)

Avoids/prevents need for re-litigation of specific fact issues decided in prior proceeding if: 1. Issue in both proceedings were identical 2. Issue necessarily litigated and decided in 1st proceeding 3. Party against whom issue preclusion asserted had full and fair opportunity to litigate the issue

Bankruptcy Appellate Panels (Federal)

Bankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of bankruptcy court decisions. These panels are a unit of the federal courts of appeals, and must be established by that circuit. Five circuits have established panels: First Circuit, Sixth Circuit, Eighth Circuit, Ninth Circuit, and Tenth Circuit.

Article I Courts (Federal)

Congress created several Article I, or legislative courts, that do not have full judicial power. Judicial power is the authority to be the final decider in all questions of Constitutional law, all questions of federal law and to hear claims at the core of habeas corpus issues. Article I Courts are: - U.S. Court of Appeals for Veterans Claims - U.S. Court of Appeals for the Armed Forces - U.S. Tax Court

What is the Erie doctrine?

Federal courts generally must apply state substantive law when making decisions based on state claims. 1. If the conflict between federal and state law involves a Federal Statute, a Federal Rule of Civil Procedure, a Federal Rule of Evidence or the issue of Trial by Jury, FEDERAL LAW GOVERNS. 2. If the conflict does not involve a Federal Statute, a Federal Rule of Civil Procedure, a Federal Rule of Evidence or the issue of Trial by Jury, STATE LAW GOVERNS if the difference between state and federal law would later the outcome of the case. Rule of thumb on the bar: State law governs unless there is a federal statute, federal rule, or a trial by jury.

Bankruptcy Courts (Federal)

Federal courts have exclusive jurisdiction over bankruptcy cases involving personal, business, or farm bankruptcy. This means a bankruptcy case cannot be filed in state court. Through the bankruptcy process, individuals or businesses that can no longer pay their creditors may either seek a court-supervised liquidation of their assets, or they may reorganize their financial affairs and work out a plan to pay their debts.

Motion for judgement as a matter of law

In a federal court, a party's request that the judge enter a judgment in her or his favor before the case is submitted to a jury because the other party has not presented sufficient evidence to support the claim. The state courts refer to this request as a motion for a directed verdict. Whoever submits the motion is asking the court to rule in their favor because the other party has provided no legally sufficient evidentiary basis (in their opinion) on which a jury could rule in their favor. Essentially, the other party's argument was so bad, that a reasonable jury could never rule in their favor, so let's skip the jury deliberation and just get to the point.

Loss of consortium

Loss of consortium is awarded to cover the physical and emotional loss a spouse experiences after their spouse is injured and must be brought by an immediate family member of the accident victim (spouse, parent, child). Loss of companionship and consortium also called the loss of society, loss of conjugal fellowship, and loss of marital compatibility are all different names for the same thing. Essentially, these terms refer to the emotional sadness one goes through when an immediate family member (spouse or child) has been injured or killed. It can include the grief from the loss of sexual relations or the loss of the ability to have children that was caused because of the personal injury.

Motion for a summary judgement

Motion for Summary Judgment is a request made by the defendant in a civil action. Through this motion a defendant asserts that the plaintiff has raised no genuine issue to be tried and asks the judge to rule in favor of the defendant without going to trial. Motion for Summary Judgment is made before the trial. Each element must be proved in the same way as any other matter on which the plaintiff bears the burden of proof. The plaintiff will have to adduce evidence on every relevant issue in order to defeat a motion for summary judgment. A summary judgment is a decision made on the basis of statements and evidence presented in the legal pleadings and documents filed, without a trial.

Personal jurisdiction

Personal jurisdiction refers to the power that a court has to make a decision (a legally binding one) regarding the party being sued in a case. Before a court can exercise power over a party, the U.S. Constitution requires that the party has certain minimum contacts with the forum in which the court sits.

Removal

Removal serves as a device for defendants to avoid the plaintiff's choice of forum (from a state court to federal court).

Standing

Standing, or locus standi, is capacity of a party to bring suit in court. Standing limits participation in lawsuits and asks whether the person(s) bringing a lawsuit, or defending one, has enough cause to "stand" before the court and advocate, since not anyone can go to court for any reason. - Standing in State Court: A state's statutes will determine what constitutes standing in that particular state's courts. These typically revolve around the requirement that plaintiffs have sustained or will sustain direct injury or harm and that this harm is redressable. - Standing in Federal Court: At the federal level, legal actions cannot be brought simply on the ground that an individual or group is displeased with a government action or law. Federal courts only have constitutional authority to resolve actual disputes

What is service of process?

The Due Process clauses in the United States Constitution prohibit courts from exercising personal jurisdiction over a defendant unless the defendant has proper notice of the court's proceedings. To meet this rule, courts require plaintiffs to arrange for defendants to be served with a court summons and a copy of the plaintiffs' complaint. These papers are collectively called process.

Supreme Court (Federal)

The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution created the Supreme Court and authorized Congress to pass laws establishing a system of lower courts. In the federal court system's present form, 94 district level trial courts and 13 courts of appeals sit below the Supreme Court. Learn more about the Supreme Court.

What is Civil Procedure?

The body of law, or set of rules, governing how the courts operate in all civil action cases (cases that do NOT involve criminal conduct)

Claim Preclusion (Res Judicata)

The doctrine of res judicata bars claims that have either been litigated or that could have been litigated from being litigated again. Essentially if you could have litigated the issue previously, but did not, you cannot try and sue the same person again in any court. The doctrine prevents parties from suing each other over and over again.

District Courts (Federal)

The nation's 94 district or trial courts are called U.S. District Courts. District courts resolve disputes by determining the facts and applying legal principles to decide who is right. Trial courts include the district judge who tries the case and a jury that decides the case. Magistrate judges assist district judges in preparing cases for trial. They may also conduct trials in misdemeanor cases. There is at least one district court in each state, and the District of Columbia. Each district includes a U.S. bankruptcy court as a unit of the district court. Four territories of the United States have U.S. district courts that hear federal cases, including bankruptcy cases: Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands. There are also two special trial courts. The Court of International Trade addresses cases involving international trade and customs laws. The U.S. Court of Federal Claims deals with most claims for money damages against the U.S. government.

What is a Complaint?

The pleading that starts a case. Essentially, a document that sets forth a jurisdictional basis for the court's power, the plaintiff's cause of action, and a demand for judicial relief.

Subject matter jurisdiction

The power of a court to adjudicate a particular type of matter and provide the remedy demanded. i.e., the power of the court to hear a particular TYPE of case

Courts of Appeals (Federal)

There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits, each of which has a court of appeals. The appellate court's task is to determine whether or not the law was applied correctly in the trial court. Appeals courts consist of three judges and do not use a jury. A court of appeals hears challenges to district court decisions from courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S. Court of International Trade and the U.S. Court of Federal Claims.

Forum shopping

When multiple courts have concurrent jurisdiction over a plaintiff's claims, the plaintiff may forum shop, or choose the court that will treat his or her claims most favorably.